EUCJ’s advisory opinion: First reactions

After the release, yesterday, of advisory opinion by the Advocate General of the EU Court of Justice (EUCJ), PMI and Totally Wicked remain confident. BAT, JTI and IT that filed alongside PMI have made no official comment.

In a short comment, PMI comments the EU Court of Justice’s advisory opinion and confirms its position, that the EU’s recent Tobacco Products Directive would disrupt the internal market, it encourages a patchwork of regulations and disregards important limits on the scope of EU legislation. The company is confident in the Court of Justice’s judgment and hopes it will enforce the balance that the Treaties require.

Totally Wicked, the e-cigarette manufacturer, reacted by recalling the advisory opinion is not a formal decision, nor a legal judgement on the questions they raised in their legal challenge.

Daily Mail UK comments: “One in four e-cigs will be banned in Britain next year after being branded too strong in European Court ruling”.

As a reminder…

PMI was seeking a review of whether the Directive complies with the EU Treaties in the following areas:

Legal Competence: The EU’s power to adopt the Directive under the EU Treaties is limited to measures that improve the internal market in tobacco products. While the Directive claims to serve that objective, it demonstrably lacks any real internal market rationale. For example, the Directive claims to be harmonizing differences in Member State laws by forcing Member States to ban menthol, even though menthol is legal in all 28 Member States. Meanwhile, it actively encourages disharmonization by inviting Member States to adopt a patchwork of other measures such as “plain packaging” even though they obstruct the free movement of goods and violate EU law. Provisions such as these ignore clear precedent from the EUCJ establishing the limits of the EU’s authority under the Treaties, and create obvious incentives for illegal trade.

Fundamental Rights: The Directive appears to ban truthful and non-misleading claims on the packaging of tobacco products. PMI intends to seek review of whether this ban respects the fundamental rights of consumers to information about the products they are choosing.

Delegated Acts: The Directive delegates a number of powers to the Commission to enact rules on essential aspects of the Directive. PMI intends to seek review of whether these delegations of power comply with the EU Treaties.